Ritz v. May , 52 Ohio App. 399 ( 1936 )

The main action in this case was brought by plaintiff in error, Lena M. Ritz, against the defendant in error, Elias May, for damages because of slander.

Ancillary thereto plaintiff sued out a writ of attachment seeking to attach funds in the hands of the executrix of the estate of David May, deceased.

The will of David May created a trust for the benefit of defendant Elias May, a brother of testator, during his life. The defendant was a nonresident, being a resident of New York. The defendant, expressly refraining from submitting his person to the jurisdiction of the court, moved to discharge the attachment upon the ground that the property and money sought to be attached could not be reached by attachment. An affidavit was filed with the motion. It being made to appear that the money and property sought to be attached were in the hands of the executrix, and that no order of distribution in the estate had been made by the court, the court granted the motion and discharged the attachment.

The judgment complained of was as follows:

"It is therefore ordered, adjudged, and decreed that said pretended attachment be, and the same hereby is, discharged and this cause hereby is dismissed at the cost of plaintiff."

It is urged that the court erred in discharging the attachment, and further erred in dismissing plaintiff's cause.

The court was correct in discharging the attachment. See Orlopp v. Schueller, Admr., 72 Ohio St. 41, 73 N.E. 1012.

On the question of dismissing plaintiff's cause, we are of opinion that if it was intended to dismiss the petition in the main action, the court erred in so doing. The court, on the motion, had no jurisdiction so to do since the main action was not dependent on the success of the attachment. The attachment was but ancillary thereto, and the jurisdictional question before the court was on the motion to discharge. It has been held that where jurisdiction over the person depends on the attachment, if the attachment fails the action falls. We do not have that situation here. It may be that service of summons in the main action can be obtained within the jurisdiction of the court and the case heard on the merits. If service is not had within a reasonable time, the court may dismiss the case for want of prosecution.

Our conclusion is that the dismissal of the cause was error.

The judgment will be modified by eliminating therefrom the words "and this cause hereby is dismissed," and, as so modified, is affirmed.

Judgment modified and affirmed as modified.

ROSS, P.J., and MATTHEWS, J., concur.